To claim title through adverse possession, the plaintiff must prove continuous peaceful possession hostile to the real owner, supported by cogent evidence.

Judgment:

J.K. Maheshwari, J.

1. Heard on the question of admission.

2. This appeal is filed by the plaintiff against the judgment and decree dated 16.3.2005 passed by Additional District Judge Ganj Basoda, District Vidisha in Civil Appeal No. 83A of 2004 confirming the finding of judgment and decree dated 24.3.2004 of Civil Judge Class 2 Ganj Basoda in Original Civil Suit No. 53A of 2002 dismissing the suit filed by the plaintiff seeking declaration and permanent injunction.

3. The plaintiff filed the suit with respect to the land of Survey No. 97 area 22.660 Hectares situated in village Arnot Tehsil Basoda District Vidisha on the ground that it was given to him by ex-ruler in Samvat 2006. However, he is in possession since last more than 30 years and acquired title by way of adverse possession. It is further prayed that the injunction in his favour may be granted having peaceful possession on the suit land.

4. The defendant no. 1 and 2 having filed the written statement inter alia contending that the suit land has been given on patta to defendant no. 2 in 1997-98 and possession has already been delivered in furtherance of said patta. However, on the date of filing of the suit, the plaintiff is not in possession, therefore, injunction may be refused. It is also stated that the plaintiff has not shown his continuous peaceful possession on the suit land hostile to the real owner, therefore, declaration of title may also not be allowed.

5. The trial court as well as appellate court both dismissed the suit holding that the appellant was an encroacher and his name was recorded in revenue papers for some years, but after grant of patta in favour of defendant no. 2 in the year 1997-98, he has not been shown in possession in revenue papers. It is further held that on the date of filing of the suit, I.e. 25.6.2002, he is not in possession as per the revenue entries and oral evidence is not reliable in view of the admission regarding grant of patta to defendant no. 2 in 1997-98. Therefore, the decree seeking declaration and permanent injunction has been refused.

6. Learned counsel for the appellant referring paras 8 and 9 has strenuously urged that he is in possession from 1977-78 till grant of patta which is apparent from the finding of the trial Court. Even then, refusal of the prayer for permanent injunction is not sustainable. Therefore, the finding as recorded by the courts below may be set-aside and the appeal may be admitted on the said substantial question of law.

7. On the other hand, Shri Rathi and Shri Upadhyay learned counsel referring para 15 of the finding of the appellate court submits that on the date of filing of the suit, the plaintiff was not found in possession, after grant of patta I.e. 1997-98 in favour of the defendant no. 2. In such circumstances, the appellate court as well as well as trial court has rightly dismissed the suit filed by the plaintiff and such finding of fact concurrently recorded by two courts below do not warrant any interference in this appeal.

8. After hearing learned counsel for the appellant, and on perusal of record, it is not in dispute that the suit land is a government land upon which, plaintiff's name was recorded as encroacher in revenue papers for some years up to 1997-98. It is also not in dispute that patta of the said land has been granted in favour of the defendant no. 2 in 1997-98. Thereafter, the possession has also been delivered to him. The plaintiff has failed to produce any revenue entry indicating his possession even as encroacher after 1997-98 I.e. date of grant of patta in favour of the defendant no. 2. It is further seen that on the date of filing of the suit by any cogent documentary evidence, he was not found in possession as per finding of the appellate court. However, in the said facts, decree for permanent injunction has rightly been refused by two courts. In addition, it is to be observed that for seeking declaration on the basis of adverse possession, the plaintiff has to